China: 汤建彬律师死刑复核辩护再传喜讯

Last Updated: 13 August 2019
Article by King & Capital Law Firm

汤建彬律师死刑复核辩护再传喜讯,于某贩毒案最高院未核准死刑并发回重审

于某某贩卖毒品死刑复核案,历时3年多,最高人民法院在充分听取辩护律师的辩护意见后,于近日裁定不核准于某某死刑的,撤销二审判决,发回山东省高级人民法院重新审判。

  一、二审法院认定被告人于某某贩卖冰毒共4次,共计约8000克,已远超死刑数量标准。该案死刑复核阶段由北京市京都律师事务所汤建彬律师、内蒙古守正律师事务所曹春风律师担任被告人于某某的辩护人。

  "数量引诱"作为不核准死刑的核心辩点

在本案的办理中,辩护律师通过多次会见、详细查阅案卷材料,发现被告人于某某被指控参与的4次毒品交易中,均有特情人员介入,存在"数量引诱"的情况。"数量引诱"即行为人本来只有实施数量较小的毒品犯罪的故意,在特情引诱下实施了数量较大甚至达到实际掌握的死刑数量标准的毒品犯罪。《全国部分法院审理毒品犯罪案件工作座谈会纪要》(以下简称《大连会议纪要》)明确:对因"数量引诱"实施毒品犯罪的被告人,应当依法从轻处罚,即使毒品数量超过实际掌握的死刑数量标准,一般也不判处死刑立即执行。对不能排除"数量引诱"的案件,在考虑是否对被告人判处死刑立即执行时,要留有余地。结合上述规定,应当对被告人于某某从轻处罚,不核准死刑立即执行。

适用死刑应给予独生子女家庭人道关怀

于某某出生于1978年,是我国第一批独生子女,其父母年轻时积极响应国家晚婚晚育政策和计划生育独生子女政策,只生育了于某某一个孩子,两位老人今年均已70多岁。

  国家虽然放开了二胎生育政策,但于七八十年代出生独生子女的父母早已经没有生育二胎的能力。当年,他们首先响应国家号召只生一个孩子,现在,当他们唯一孩子涉及犯罪可能被判处死刑时,如有从轻情节,应当留有机会,以体现对这些为计划生育政策做出牺牲老人们的人道关怀,避免老无所亲的凄凉晚境。

最终,最高人民法院采纳了辩护律师的辩护意见,认为第一审判决、第二审裁定认定的部分事实不清、证据不足,并裁定不核准被告人于某某死刑。

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